New Zealand's indigenous people and their claims to fisheries resources

Marine Policy 25 (2001) 23}32

New Zealand's indigenous people and their claims to "sheriesresources

Randall BessSchool of Business, Nelson Marlborough Institute of Technology, Private Bag 19, Nelson, New Zealand

Received 23 August 2000; accepted 28 October 2000

Abstract

New Zealand's "sheries are perhaps best known for the individual transferable quota (ITQ) system brought about by the FisheriesAmendment Act 1986. The 1986 Act allocated quota to "shing "rms and individuals that met the allocation criteria. Part-time "shers,many of whom were Maori, New Zealand's indigenous people, were excluded from the initial allocation. The 1986 Act did not addressclaims by Maori of having indigenous rights guaranteed by the Treaty of Waitangi 1840. Since the Treaty, Maori have protestedagainst government actions and legislation that have eroded their rights guaranteed by the Treaty. The implementation of the 1986Act prompted further Treaty-based claims to large areas of "sheries, and the ITQ system was used to settle several claims. This paperexplores Maori views on resource use and claims to "sheries resources, legislative changes enacted to settle Maori "sheries claims, andclaims that remain outstanding. The insights of this paper have relevance to the broader discussion on the position of indigenouspeoples throughout the world. ( 2001 Elsevier Science Ltd. All rights reserved.

Keywords: Indigenous peoples; Indigenous rights; New Zealand; Individual transferable quota

1. Introduction

To fully understand New Zealand's individual trans-ferable quota (ITQ) system, it is imperative to compre-hend the growing presence that Maori, New Zealand'sindigenous people, have in the "shing industry. Begin-ning in the late 1980 s, Maori have received vast transfersof quota holdings and other assets that ensure they willhave a continued and growing presence in the industry.The assets transferred to Maori are the result of settle-ments to their claim that the Crown breached the Treatyof Waitangi 1840, considered the founding document ofNew Zealand as a nation. The Treaty of 1840 explicitlystates that Maori have rights to their natural and culturalresources.

However, government actions and legislation sub-sequent to the Treaty of 1840 have eroded MaoriTreaty-based rights. Maori have continued to object tothe erosion of their rights, bringing numerous legalclaims against the Crown which have mostly been, untilrecently, unsuccessful. The implementation of the Fishe-

E-mail address: [email protected] (R. Bess).

ries Amendment Act 1986, which introduced the ITQsystem, prompted further Treaty-based claims to largeareas of "sheries. Many Maori objected to the ITQsystem as it was seen to force their severance from theocean, raid their sea resources and sell their right toparticipate in "sheries while others were allowed accessto their traditional "shing grounds. Some Maori havequestioned why the ITQ system and its bureaucracy havereplaced some of their traditions, conservation practicesand their extensive knowledge of the sea [1].

This paper explores Maori claims to "sheries re-sources, legislative changes enacted to settle those claimsand claims that remain outstanding. In so doing, thispaper explores Maori views on resource use which re-quire consideration of Maori history, their social systemand traditions, including "sheries management practices.It is important to place Maori "sheries claims in thisbroader context for two reasons: "rst, to better under-stand why Maori call themselves tangata whenua (peopleof the land) and what signi"cance this has to their re-source claims; second, to counter the longstandingmisconception that Maori historically had limited in-volvement with the sea. This misconception conve-niently accommodated the early Anglo}Commonwealthsettlers' encroachment onto Maori traditional coastal

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and o!-shore "shing grounds. This misconception hascontinued to in#uence most of New Zealand's "sherieslegislation.

This paper begins with a section entitled `Indigenouspeoples' rightsa, which is discussed in the context ofcolonisation. The following sections are Maori early his-tory and traditions, Early colonial history, Fisheriesmanagement legislation, Maori "sheries claims andsettlements, and conclusions and recommendations.

2. Indigenous peoples: rights

It is important to place Maori claims to "sheries re-sources within the wider arena of indigenous peoples'rights, since indigenous peoples worldwide now seek thesurvival of their cultures and control of their own des-tinies [2]. &Indigenous' or &aboriginal' peoples are gener-ally de"ned as &the living descendants of preinvasioninhabitants of lands now dominated by others' [3, p. 3].During the last few decades, indigenous peoples haveincreased their political strength to:

f gain recognition of their cultures and heritage,f address the e!ects of having been economically dispos-

sessed and disenfranchised from their traditions, lan-guages and resources, and

f reclaim what they have lost.

This section brie#y outlines indigenous peoples' e!ortson the above three points. In the eighteenth and nine-teenth centuries, British and European nations increasedtheir e!orts to establish colonial settlements in whathad become new migrant nations, including the UnitedStates, Canada, Australia and New Zealand. At the timethat new migrant nations were "rst settled by colonisingnations, a doctrine in international law stated thata change of sovereignty on cession between colonists andindigenous peoples did not a!ect the property rights ofthe indigenous peoples [4]. Indigenous peoples, there-fore, had rights to retain possession of their lands and tofull sovereignty, and these rights could not be extin-guished. Contrary to this doctrine, the practice of colon-isation legitimised the paci"cation of indigenous peoplesby a combination of genocide, wars and low-intensityarmed con#ict, mass population transfers, treaties cedingland while proclaiming friendship, paternalistic segrega-tion, ethnocidal assimilation, and talk of post-assimila-tion self-government [5]. Colonisation has left a legacy ofdispossession and marginalisation that has contributedto the ongoing racial and ethnic inequalities and poverty[6]. New Zealand's colonial history mirrors the experi-ence of other new migrant nations.

The e!ects of colonisation remain and impede indigen-ous peoples' e!orts to rea$rm their culture and heritage.The cause of these impediments are often nations' institu-tional and ideological intolerances towards indigenous

peoples and their social systems [7]. One example is thecommon law principle underpinning the &tragedy of thecommons' which is often used to support the applicationof property rights in the management of natural re-sources. Colonial societies in the new migrant nationsattempted to avoid the social dilemmas outlined in the&tragedy' by transplanting their preponderance towardsstate or private property rights to the new colonies, whilegiving little or no consideration to the suitability ofcommon property rights or indigenous peoples' resourcemanagement practices. This transplantation occurreddespite many indigenous societies throughout the world,including those of New Zealand, providing numerousexamples of resource management practices based oninstitutional decision-making arrangements and culturalfactors that had sustainably managed common resourcesfor centuries [8].

To date, the new migrant nations have taken signi"-cant steps to recognise the losses that their indigenouspeoples have endured and to address their outstandingclaims through political, legal and social channels. Policymakers have had to consider how to formally recogniseand exercise indigenous peoples' rights within existingproperty and management regimes [9]. While some na-tions can be described as having decolonised theirexternal relations, colonisation continues through struc-tural inequities between indigenous peoples and theirnations' dominant cultures [10]. Since the early 1980s,however, there has been a remarkable upswelling in in-ternational activity concerning the position of indigenouspeoples [4].

2.1. UN Draft Declaration on the Rights of IndigenousPeoples

The primary means to collective expression of indigen-ous peoples' rights has been the United Nations (UN). In1982 the UN Commission on Human Rights establisheda working group on Indigenous Populations. This work-ing group was established to facilitate dialogue betweengovernments and their indigenous peoples to review de-velopments in the protection of their human rights andfundamental freedoms and to develop international stan-dards on their rights. In 1993 the working group de-veloped a Draft Declaration on the Rights of IndigenousPeoples, which consists of guidelines and principlesbased on established international human rightsdoctrines.

The Draft Declaration's third article has attracted themost controversy by stating &indigenous peoples have theright to self-determination'. As would be expected, manyUN member nations, including New Zealand, havevoiced their concerns about the inclusion of the self-determination concept in the Draft Declaration withoutit being explained or quali"ed. Their main concern is thatself-determination could threaten the preservation of

24 R. Bess / Marine Policy 25 (2001) 23}32

their existing territories. Although the Draft Declarationdoes not exclude secession by indigenous peoples, thethrust of the Draft Declaration is that indigenous peopleswill remain full members of their nations' societies [7],provided they are entitled to full and equal participationin the creation of government institutions, making themperpetually in control of their own destinies [3].

It is expected that the adoption of the Draft Declar-ation will provide considerable moral force for membernations to use it as a legal benchmark for governmentpolicies. Various UN instruments, along with the Inter-national Decade for the World's Indigenous Peoples1995}2004, help raise awareness of changes needed inaddressing indigenous peoples' rights.

3. Maori early history and traditions

New Zealand was the last habitable region ofthe world to be settled by humans [11]. Most archeol-ogists' estimates place the "rst human arrivals in NewZealand between 800 and 1100AD, with it being unlikelythat there were signi"cant new arrivals after 1200 AD.However, more recent analysis shows that humansmay have "rst arrived around 2000 years ago, then left ordied out, and resettled in greater numbers at around1400AD [12].

Maori commonly refer to an original homeland,Hawaiki, and their ancestors sailing in either single ordouble waka (large dugout canoes) to the new land theycalled Aotearoa, the land of the long white cloud [13,14].The later arrivals either intermarried with the earlierinhabitants, or conquered them to produce new socialformations [15]. The various arrivals to Aotearoa overcenturies, if not millenia, help explain di!erences amongMaori in dialect and interpretation of traditions andthe di$culties encountered when applying a pan-Maoriperspective.

Like other indigenous peoples throughout the world,Maori have a sense of &rootedness' in the land and seawhich provides them with a way of seeing the naturalworld in its entirety and their inter-relatedness with theenvironment [16]. Since Maori consider everything inthe world to be alive and related, they make no distinc-tion between nature and human society. The naturalworld and human society are inseparable and have beensince the beginning of time. Humans and all other lifeforms are indissoluably tied together through kinship[11]. Everything in the natural world is viewed as pos-sessing its own mauri (life force), which is not to be alteredto any great extent. Maori tikanga (customary values andpractices) were developed to ensure that resource use didnot disturb its mauri. Humans possess mauri-ora (higherorder of mauri), which bestows on humans kaitiakitanga(responsibility towards other living things). Kaitiakitangaencompasses rules, beliefs and ethical obligations hu-

mans have to protect the integrity of resources for futuregenerations [16].

Maori depict gods as the source of all knowledge, andancestors carry knowledge through their whakapapa(genealogy), and transmit it to human descendants. Thewhakapapa begins with the Maori account of creationand making the "rst humans from the soil of Hawaiki,thus making all humans belong to the land. These cre-ation legends show how spiritual agents and the tran-scendental forces of mana (authority, power, prestige)pervade the Maori cosmos and personal interactions[10].

Maori kinship-based society is hierarchically struc-tured. Whanau (extended family) is led by the kaumatua(male elder) and the kuia (female elder). A collection ofwhanau make up a hapu, which is led by the rangatira(chief ). A grouping of related hapu make up an iwi led bythe ariki (paramount chief ) [17]. The concept of iwi,however, did not eventuate until the late nineteenth andearly twentieth centuries [11] when related hapu formediwi in response to warfare and population increases atthat time [17]. Prior to then, the hapu was responsible forlandholdings, with each aspiring to claim a stretch ofcoastline, land for horticulture and interior forests forhunting and as sources of timber. Inland hapu sought tocontrol the land around lakes and along riverbanks.

The fabled waka traditions di!erentiate hapu and iwifrom one another by their identi"cation with reveredwaka ancestors or their descendants [15]. Even thosewho trace their whakapapa for having always lived inAotearoa acknowledge ancestors whose origin wasHawaiki [11]. Whakapapa is the determinant of all manarights to land, membership in a whanau, hapu and iwi,kinship roles and responsibilities to other kin, and one'splace and status within society [18].

3.1. Maori traditional xsheries management

Maori involvement with "shing embraces a spiritualdimension common among indigenous peoples. Thisspiritual dimension to "shing empowers Maori withmana atua (prestige and power of the gods) [16]. Thelinking of "sheries management to the spiritual realmand the hapu's communally-based structure helped en-sure that "sheries were managed sustainably. Tikanga(customary values and practices) and kaitiaki (guardian-ship of resources) maintained the long-term preservationof ecosystems and "sh stocks by regulating access anduse. In most cases, the property rights to "sheries residedin those with mana moana (sovereignty over freshwaterand sea holdings), which was usually the hapu occupyingadjacent land. Their territorial boundaries extended toinland water ways and out to sea. Because of "sheries'links with the gods, and the strong reliance hapu had on"sheries as a food source, they were considered taonga(treasure or a prized possession). The "sheries of each

R. Bess / Marine Policy 25 (2001) 23}32 25

hapu had clearly de"ned areas with known access rights,and the knowledge of their tauranga ika ("shing grounds)was closely guarded and handed down through genera-tions [16].

As "sheries were common to particular hapu, theycame under the traditional authority of the rangatira whohad responsibility for sustaining the "sheries resources.The exercise of rangatiratanga (chieftainship) invokedprohibitions and enforcements such as tapu (spirituallybased restrictions), thus having the power and in#uenceof the gods. When tapu was placed on a "shery there wererestrictions and prohibitions to protect or control the "shstocks. It was understood that exploitative behaviourtowards "sheries, such as breaching tapu, was a seriouso!ence that could invoke the punishment of the gods.A less serious o!ence could result in o!enders beingsubjected to muru, (plundering of o!ender's possessionsby whanau or hapu) [1].

The early explorers and colonial settlers to Aotearoaexpressed amazement at Maori "shing standards, theirdisplayed ingenuity and knowledge of the "shinggrounds, as well as the abundance of "sh life [1]. OnDecember 4, 1769, Joseph Banks, on board Cook's shipEndeavour, wrote:

2 [The Maori] after having a little laugh at ourseine, which was a common kings seine, shewd usone of theirs which was 5 fathom deep and itslength we could only guess, as it was not stretchedout, but it could not from its bulk be less than 4 or500 fathoms [700}900m]. Fishing seems to be thechief business of part of the country; about all theirtowns are abundance of netts laid upon small heapslike hay cocks and thatched over and almost everyhouse you go into has netts in its making [1].

A reported observation, dated December 29, 1814,stated that Maori were well supplied and very industri-ous with their "shing. It also reported that Maori ob-served certain "shing rights with limits to areas markedby stakes driven into the water. Several rows of stakesde"ned areas belonging to the di!erent hapu, and tres-passing instantly attracted retribution [1].

These historical accounts and many others demon-strate that Maori utilised their "sheries resources andconducted trade amongst themselves and with settlers.By the 1820 s Maori were substantially involved in pro-viding European ships and coastal whaling stations withprovisions. By the 1830 s, ships were carrying largequantities of Maori produce to Sydney, which continuedwell after the signing of the Treaty of 1840 [1].

4. Early colonial history

The anarchic colonial settlement of New Zealand dur-ing the late 1700s and early 1800s led to cultural clashes

between Maori traditions and those of the colonial set-tlers. These clashes caused New Zealand to form asa nation with two disparate traditions. In contrast toMaori emphasis on kinship, respect for ancestors, spiri-tuality, and millennial connectedness to the naturalworld, the Anglo}Commonwealth settlers brought theirconcepts of modernity, the Westminster governmentalsystem, scienti"c positivism, capitalism, and Christian-ity's monotheism [17]. Settlers then viewed Maori asimpediments to progress and the spread of civilisation,believing the &landscape could be tamed, and the savagedomesticated and assimilated' [17, p. 108].

Con#icts arose repeatedly between Pakeha (those ofEuropean descent) and Maori over land and sea claims.Pakeha interactions with Maori resulted in the intro-duction of foreign diseases that devastated the Maoripopulation. The introduction of muskets in the 1820 sintensi"ed warring between some Maori factions, leadingto further atrocities and devastation of their traditionalsociety. By 1835, many Maori desired that the musketwars cease, and they turned to Christian missionaries,which further undermined their traditional society. TheChristian missionaries advised the Maori chiefs to agreeto signing the Treaty of 1840, which marked the nextstage in the erosion of Maori culture [15].

At the time the Treaty of 1840 was signed, Maori wereby no means weak, compliant or submissive. Maoriclaimed all their lands, not just their settlements andcultivations, and they were well armed, outnumberingPakeha by thirty to one. They were intent on preservingtheir autonomy, and clearly retained control of the landand sea. Maori were hopeful that the Treaty of 1840would lessen the threat of further French settlementsand the anarchy that prevailed in New Zealand at thetime [19].

The English-language version of the Treaty of 1840 isrecognised by the Crown as the founding document ofNew Zealand as a nation. Maori widely accept anotherversion in Maori language, Te Tiriti o Waitangi. Bothversions of the Treaty of 1840 have three articles. The"rst article of the English-language version states thatMaori &cede to Her Majesty the Queen of England abso-lutely and without reservation all the rights and powersof Sovereignty2' The Maori translation of this article,however, uses the term kawanatanga (the right of iwi toself-government in their particular region). This di!er-ence in translation, with the English version cedingsovereignty and the Maori version ceding governance,deceived the Maori signatories, causing the Treaty of1840 to be the "rst step in the subversion of Maorisovereignty [17].

The English-language version of the second articlestates that the Queen of England guarantees Maori &thefull exclusive and undisturbed possession of their Landsand Estates Forests Fisheries and other properties whichthey may collectively and individually possess2' This


guarantee requires Maori to agree to an exclusive pre-emptive clause that allows the Queen &the exclusive rightof Preemption over such lands2' This clause allows theCrown to purchase Maori land should they be inclined todispose of it &at such prices as may be agreed upon2'

The second article in the Maori version, however,guarantees Maori chiefs tino rangatiratanga (unquali"edexercise of their chieftainship over their lands, villages,"sheries and all their taonga). The guarantee of tinorangatiratanga contradicts the English-language versionof the "rst article [17]. Maori agreed to the "rst articleupon the Crown's conditional promise to recognise thesecond article's guarantee of Maori's undisputed rights totheir resources, lands, forests, "sheries, taonga, etc. [18].The third article in both versions has the Queen ofEngland extend to Maori &royal protection and impartsto them all the Rights and Privileges of British Subjects'.

Soon after the Treaty was signed, the guarantee toMaori that they retain &full exclusive and undisturbedpossession of their Lands and Estates Forests Fisheriesand other properties'was ignored by the colonial govern-ment, which was intent on accommodating the growth incolonial settlements by acquiring Maori land. This wasdone primarily by the manipulation of the English-language version's pre-emptive clause to suit the interestsof the settlers [20].

Successive governments asserted the Crown's sover-eignty by the use of military force to subdue and intimi-date Maori chiefs; extinguishing native title to landthrough unscrupulous purchases and other meansthrough the Native Land Court; transmigration ofsettlers from the United Kingdom to gain numericaldominance; military invasion; con"scation of land; andpolitical disempowerment. The erosion of Maori chiefs'land base disempowered them, forcing over 90 per cent ofMaori to subsistence living on remnants of their tradi-tional land [17]. Thereafter, Maori and Pakeha becamebinarily opposed to each other ethnically, socially andculturally, and this historical opposition remains [15].

As is evident, most, if not all, that was guaranteed toMaori by the Treaty of 1840 has been alienated fromthem. Since the signing of the Treaty Maori land hold-ings have diminished from around 66million acres toaround 3 million acres [19]. By 1985 only 1800 Maoriworked in the "shing industry; few owned vessels andlicences while most worked as labourers [21].

5. Fisheries management legislation

By 1792 there was a thriving sealing industry through-out Aotearoa's waters, and whaling became prosperousby the early 1800 s, attracting whaling ships primarilyfrom Australia, the United Kingdom and the UnitedStates. Maori "sheries management practices could notcontrol the exploits of sealers and whalers, thus making

the late 1700 s until the mid-1800 s a period characterisedby a distinct lack of management of some "sh stocks.Subsequently, New Zealand's "sheries management canbe classi"ed into three distinctly di!erent regimes: from1866 to 1962 a limited entry system existed consisting ofa range of regulations to limit participation in "sheries;1963}1982, a regulated open entry system was in placethat encouraged greater domestic participation in "she-ries; and, beginning 1983, the Quota ManagementSystem was implemented to address overcapitalisationthat occurred during the previous regime, to rebuildoverexploited inshore "sheries, and to enhance e$cien-cies for the industry, in part, through the allocation ofITQ.

These three "sheries management regimes have alloperated with similar assumptions about Maori andtheir involvement in "shing. The "rst assumption is thatMaori lacked their own "sheries management systems,hence there was a need for statutory management. Thisassumption was perpetuated by the lack of any national"sheries departments having responsibility for ascertain-ing the nature and extent of Maori "shing and anyentitlements they may have had [1]. The second assump-tion is that Maori "shing activity should be limited tosubsistence use. However, this assumption fails to ac-knowledge well-documented early successes Maori hadin large scale "shing and trade.

Only a few exceptions in "sheries legislation recog-nised Maori rights to "sheries resources. For example,the Fish Protection Act 1877 Section 8 states &nothing inthis Act 2 shall be deemed to repeal, alter or a!ect anyprovisions of the Treaty of Waitangi, or take away,annul, or abridge any of the rights of the aboriginalnatives to any "shery secured to them thereunder'. How-ever, the few examples of statutory recognition of Maori"shing rights were not honoured in practice. They weregenerally held to be ine!ective due to no Maori "sherieshaving been recognised by statute [7].

Maori have taken a number of cases to New ZealandCourts over their customary "shing rights, and claims tolakes, rivers and foreshores. Some of these cases wereinclusive of Maori rights to land. Some cases resulted inthe Crown promising Maori reserves. Of the few thatwere granted, most were reduced or taken out of Maoricontrol. Some Maori "shing rights claims continued foryears and eventually ended in Maori accepting what theycould obtain while the Crown usually ceded very little[1]. For over one hundred years, the New ZealandCourts interpreted and implemented "sheries legislationin ways that continued to erode Maori "shing rights,leaving them with limited involvement in the manage-ment of some "sheries, restricting their use to subsistencepurposes or neglecting their claim to having any rights to"sheries resources.

Statutory recognition of Maori "shing rights was re-stated in the Fisheries Act 1983 Section 88(2) by stating


&nothing in this Act shall a!ect any Maori "shing rights'.However, the Fisheries Amendment Act 1986, whichbrought about the ITQ system, further marginalisedMaori in "shing. The 1986 Act makes no reference to the1983 Act Section 88(2) nor any other reference to Maorihaving Treaty-based "shing rights. Furthermore, the1986 Act allocated ITQ to "shing "rms and individualsthat met the allocation criteria. Part-time "shers, manyof whom were Maori, were excluded from the initialallocation.

The implementation of the ITQ system promptedMaori claims to large areas of "sheries. Many Maoriviewed the ITQ system as a breach of the Treaty of 1840'ssecond article that guaranteed Maori full, exclusive andundisturbed possession of their "sheries. The ITQ systemwas viewed by many Maori as severing them from theocean, raiding their sea resources and selling their rightto participate in "sheries while others were allowed ac-cess to their traditional "shing grounds. In so doing, theITQ system and its bureaucracy replaced some Maoritraditions, conservation practices and their extensiveknowledge of the sea [1].

Beginning in the mid-1980 s, Maori began to "leTreaty-based claims to "sheries resources in responseto the implementation of the ITQ system. The basisto Maori claims is that they never relinquished their"shing rights, and that the Crown breached its Treatyof 1840 obligations. While the ITQ system initiallyprompted indigenous claims to large areas of "sh-eries, it proved to be an e!ective means of resolving someclaims.

6. Maori 5sheries claims and settlements

The Government's intent to implement the ITQ sys-tem and resolve Treaty of 1840 grievances placed signi"-cant political pressure on the settlement of Maori "shingrights claims. The "rst Treaty-based claim in response tothe ITQ system began in June 1985 by a collection of iwi,the Muriwhenua, of the far north of the North Island.The Muriwhenua claim and subsequent "sheries claimswere "led with the Waitangi Tribunal.

The Waitangi Tribunal was established in 1975 withthe passing of the Treaty of Waitangi Act 1975. TheWaitangi Tribunal's functions are to assess the Crown'sacts or omissions against the principles of the Treaty of1840, assess whether inconsistencies in the Crown's actsor omissions have had a prejudicial e!ect on Maori, andhow a prejudicial e!ect might be compensated and/orremedied. It should be noted that there has not beenbroad agreement on what the Treaty of 1840 principlesactually are beyond the obligation of Treaty partners toact in good faith, and the Crown to consult with andinvolve Maori in decision-making under the Treaty'sguarantee of rangatiratanga [22].

The Waitangi Tribunal's report on the Muriwhenuaclaim concluded that numerous and serious breaches ofthe Treaty of 1840 had occurred, and the e!ects on theMuriwhenua people had been wide-ranging, costingthem income, jobs, trade and opportunities to developtheir own "sheries. Furthermore, their having to leavetheir traditional area to search for employment had se-verely impacted on their traditional ways. In#uenced bysteps taken in Canada and the United States, theWaitangi Tribunal's report stated that a new agreementbetween the Crown and the Muriwhenua people wasessential, and this new agreement had to assist the resto-ration of their tribal base and the development of theirindustrial capability [1].

The Muriwhenua claim and the Waitangi Tribunal'sMuriwhenua Fishing Report provided the basis for in-junctions against further ITQ allocations. In September1987 the Muriwhenua claimants successfully petitionedthe High Court for an injunction against futher ITQallocations. Maori and the Crown entered into negoti-ations, interspersed with disputes, on how Maori "sheriesmight be given e!ect in light of tino rangatiratanga, asoutlined in the second article of the Maori-languageversion, and Maori having full, exclusive and undistur-bed possession of their "sheries, as outlined in the secondarticle of the English-language version.

6.1. Maori Fisheries Act 1989

During protracted negotiations between Maori andthe Crown, the Crown implemented an interim and with-out prejudice settlement. Although Maori negotiatorsobjected to some aspects of this interim settlement, it waspassed into law as the Maori Fisheries Act 1989. The1989 Act outlined several contributions made by theCrown to Maori, including the transfer of 10 per centof existing total allowable commercial catch before 31October 1992 to the new Maori Fisheries Commission.In order to meet this obligation, the Government activelytraded in the open market to obtain ITQ. The 1989 Actalso included a $10million payment made by the Crownto Maori. It is important to note that the 1989 Actincluded provisions for the Crown to recognise tinorangatiratanga by enhancing Maori involvement in thecontrol and management of "sheries, and the recognitionof taiapure (local "shery areas).

The Maori Fisheries Commission was required to ad-minister these settlement assets on behalf of Maori,which it did primarily through its commercial enterprise,Aotearoa Fisheries Ltd., and short-term ITQ lease ar-rangements. The Maori Fisheries Commission was alsorequired to facilitate the entry of Maori into the businessand activity of "shing, but it had no power to allocateassets to Maori or develop a means of allocating assets.Maori made it clear, however, that their acceptance of10 per cent of ITQ did not represent the full settlement


of their "sheries claims. The assets provided to Maori bythe 1989 Act are known as the pre-settlement assets.

In August 1987 the Ngai Tahu people, who at the timeof the 1840 Treaty had kaitiaki over most of the SouthIsland, "led a "sheries claim against the Crown. NgaiTahu claimed:

f they had the right to full ownership of "sheries out to12 miles o! the coast of their traditional boundaries;

f as a partner with the Crown in the Treaty of 1840 theywere prepared to grant 50 per cent of ITQ within thistwelve mile zone to the Crown; and

f they were prepared to accept ITQ outside the 12milezone as compensation for the Crown's stewardship of"sheries having resulted in serious depletion of "sh-stocks within the 12mile zone [23].

After a series of claim hearings from August 1987 toSeptember 1991, the Waitangi Tribunal concluded that:

f Ngai Tahu had never disposed of their exclusive rightto sea "sheries;

f the Crown had breached its Treaty of 1840 obligationsto Ngai Tahu;

f Ngai Tahu have an exclusive Treaty right to the sea"sheries up to twelve miles from their territorialboundaries; and

f Ngai Tahu have a Treaty development right to a rea-sonable share of the sea "sheries within twelve to twohundred miles [23].

6.2. The Treaty of Waitangi Settlement Act 1992

At the time negotiations took place on the Ngai Tahuclaim, Sealord Products Ltd., New Zealand's largest sea-food "rm, was o!ered for sale, and this was seen as anopportunity to settle Maori "sheries claims. In 1992 theDeed of Settlement was signed between Maori and theCrown as the full and "nal settlement of all Maori com-mercial "sheries claims in accordance with the Treaty of1840. The Treaty of Waitangi Settlement Act 1992 gavee!ect to the 1992 Deed of Settlement and repealed theFisheries Act 1983 Section 88(2). The 1992 Act resulted inthe Crown agreeing to provide $150million for Maori toenter into a 50/50 joint venture with Brierley InvestmentsLtd. in the purchase of Sealord Products Ltd., and 20 percent of all new species brought within the ITQ system tobe allocated to Maori. The assets allocated to Maorithrough the 1992 Act are known as the post-settlementassets. It should be noted that Maori did not unanimous-ly support the 1992 Deed of Settlement, and a Court ofAppeal injunction against the 1992 Deed was attempted.Some of the main points of the 1992 Act include:

f Maori non-commercial "shing rights remain subject tothe Fisheries Act 1983, and hence remain in accord-ance with the Crown's obligations under the Treaty of1840;

f the Minister of Fisheries is to consult and developpolicies with Maori to recognise their use of and man-agement practices for non-commercial "shing rights;and

f regulations are to be developed that recognise andprovide for Maori customary food gathering and theirspecial relationship with places that have customaryfood gathering importance, such as tauranga ika ("sh-ing grounds) and mahinga mataitai (sea reserves).

The 1992 Act brought about the reconstitution of theMaori Fisheries Commission as the Treaty of WaitangiFisheries Commission Te Ohu Kai Moana (TOKM) toadminister both pre- and post-settlement assets. TOKMwas empowered to devise, in consultation with Maori,a scheme to distribute the pre-settlement assets, valued in1992 at around $130million, with a current value ofaround $300 million [24]. Since 1992 TOKM has heldnumerous meetings to consult with iwi about the methodof allocating pre-settlement assets. The proposed opti-mum method of allocation has assets distributed to iwi,since tikanga has "sheries rights held collectively.

It is intended that once the assets are allocated to iwi,they will have full discretion on how to use those assets tobene"t their members. In November 1998 seventy-eightiwi received the TOKM's Report on the Proposed Methodfor Allocation of Pre-Settlement Assets. To date, thirty-"veiwi have accepted the proposed allocation method whileeighteen have rejected it, and others have expressed con-ditional acceptance, no response or no decision. Thereare proposed iwi mandate, representation and structuralrequirements to be agreed to before the allocationmethod is implemented [25]. The proposed optimumpre-settlement allocation method is as follows:

f Inshore ITQ, "shstocks caught at depths to 300m, willbe allocated according to iwi coastline adjacent totheir rohe (traditional boundaries).

f Deepwater ITQ will be allocated so that half will usethe coastline basis, and the other half will use a popu-lation basis, according to the 1996 Census data.

The allocation of deepwater ITQ takes into accountthe Waitangi Tribunal's "ndings that Maori have a rightto share in the development of deepwater "sheries. It isintended that other pre-settlement assets, such as sharesin TOKM and cash holdings, will be allocated to iwiaccording to the volume of ITQ allocated to them andthe iwi population basis, respectively [25]. The lengthyprocess of determining the method for allocating pre-settlement assets has not been without a cost to Maori,and it has been estimated that the cost of delaying theallocation process till 2006 is at $84 million [26]. It isexpected that after the pre-settlement assets have beendistributed to iwi, a new Maori Fisheries Act will set outa scheme for distributing the post-settlement assets.


6.3. Outstanding Maori xsheries claims

As mentioned, the 1989 Act included provisions for therecognition of taiapure (local "shery areas), and the 1992Act stated that Maori customary "shing rights remainand new "sheries regulations are to recognise and pro-vide for Maori customary food gathering and theirspecial relationship with such places. It is expected thatthe development of these places will encourage moreMaori to be involved in "sheries [27]. Despite the gov-ernment's inaction on this matter, to date several mataitaiand taiapure have been established. The current manage-ment of mataitai and taiapure raises some di$culties forlocal Maori authorities in expressing their traditionalmanagement practices. These di$culties demonstratethat the expression of rangatiratanga has been narrowlyprescribed, perpetuating Maori's distrust of legislationfor the protection of their customary rights [16].

In 1997, after a "ve year process of drafting nationalregulations for customary "shing rights, Ngai Tahujoined with Te Tau Ihu o te Waka a Maui, a confeder-ation of eight iwi from the top of the South Island, todetermine the South Island Customary Fishing Regula-tions. This joint e!ort includes "ve regional co-ordina-tors who work closely with the Ministry of Fisheries andhonorary "sheries o$cers. The co-ordinators also workwith those nominated by tangata whenua to specifyconditions for customary take, ensure iwi have reliabledatabases, and assist with establishing mataitai and rahui(temporary closures). Most other iwi continue their un-resolved discussions on customary rights and regulationsdirectly with the Ministry of Fisheries [28].

An issue of importance concerning customary rights isthat the Treaty of Waitangi Settlement Act 1992 does notstate the amount of "sh to be taken. The Minister ofFisheries has proposed that allowances for customarytake be within total allowable catches (TAC) whileTOKM has recommended allowances be set at 10}20 percent of the TAC for most "shstocks. However, the deter-mination of customary take remains unresolved [29].

Currently, there is a claim before the New ZealandCourts that has signi"cant legal implications for Maoriand all New Zealanders. This claim was "led by Te TauIhu o te Waka a Maui for customary title to the foreshore(land below mean high tide) and seabed of the Mar-lborough Sounds, at the top of the South Island. The TeTau Ihu o te Waka a Maui claim is currently before theMaori Appellate Court after an interim decision wasmade by the Maori Land Court. The interim decisionstates that Maori customary title to the foreshore andseabed may still exist, pending certain conditions. TheMaori Appellate Court is now considering evidence todetermine whether the deeds of land sales in the areaincluded the foreshore and whether any legislation re-lates to the foreshore and seabed and may have extin-guished any pre-existing customary title Maori had prior

to 1840. Te Tau Ihu o te Waka a Maui's claim hassigni"cance for two reasons. First, the MarlboroughSounds area is used extensively by recreationalists andmarine farmers, primarily for the growing of Green-shellTM mussels. Recently, there has been a #urry ofmarine farm applications, which are now being reviewedby various local councils [30]. Second, in the event theclaim is successful, it could set a precedent for other iwi toraise similar claims throughout New Zealand.

7. Conclusions and recommendations

Prior to the arrival of Pakeha, Maori had a centuries-old relationship with the natural world, and their rela-tionship with the sea permeated their way of seeing theworld. Until the mid-1800 s, Maori society remainedstrong and vibrant, and the practice of tikanga andkaitiaki ensured "sheries remained sustainable. After thearrival of colonial settlers, the Treaty of 1840 was viewedas desirable for Maori-Pakeha relations. The Treaty wasa relatively enlightened &blueprint' that provided Maoriwith protection of their resources in exchange for theCrown having authority over New Zealand [10]. How-ever, in practice, the Treaty of 1840 paved the way forBritish imperialism and sovereignty [17]. The sup-pression of Maori culture and language, and their assimi-lation into Pakeha culture, led to numerous Maori losingthe capacity to speak or think in Maori terms [10]. Theinappropriateness of some New Zealand institutions andPakeha involvement in issues critical to Maori haveworked to break down traditional Maori society. Thishas made it extremely di$cult for Maori to maintaintribal responsibility for their own people and for societyat large to appreciate Maori having the right to maintaintheir own way of life [31].

The settlement of some Maori Treaty-based claims hasbrought about the reclamation of much of their tradi-tional land and "sheries resources. Now, Maori-ownedITQ totals 224,000 tonnes, approximately one-third ofthe total ITQ [24]. The combined pre- and post-settle-ment assets from the Maori Fisheries Act 1989 and theSettlement Act 1992 ensure that Maori will continue tohave a major in#uence in the development of the com-mercial "shing industry. However, many iwi "nd itdi$cult to incorporate their traditional "sheries prac-tices within the con"nes of the ITQ system and itsbureaucracy.

Now that Maori commercial "sheries claims have beensettled, the greater challenge for New Zealand is de"ningMaori customary rights and determining "shery regula-tions that secure these rights. Similar to Treaty-basedrights, customary rights hinge on tino rangatiratanga andthe concept of mana. According to Walker [17], Maorimana and tino rangatiratanga may coexist with that ofthe Crown, provided there are discrete institutional


frameworks that recognise and respect the legitimacy ofthis arrangement. This is what Maori believed they wereguaranteed when signing the Treaty of 1840. However,New Zealand has been particularly averse to discussingthe notion of sovereignty, perhaps due to having littleexperience with federalist notions of dividing sovereignty[32].

Coates [2] reminds us that the recognition of indigen-ous peoples' rights should remain culturally focused, notlegalistic, and that all members of a society, includinggovernment insitutions, have the responsibility to beinvolved in progressing relationships based on trust andcon"dence. Maori customary rights are "rst and fore-most about the expression of Maori culture through tinorangatiratanga. However, the concept of Maori "sherieswithout pecuniary gain is foreign to the Crown. In addi-tion, the concepts of tikanga and kaitiaki connote a senseof co-operation, trust, spiritual-connectedness and sus-tainability of the ecosystem. Since the mid-1980s theCrown has focused on entirely di!erent concepts as it hassteadfastly reformed both public and private sectors withstrong emphasis placed on competition, individualismand other market-driven forces.

Like the settlement of Maori commercial "sheriesclaims, many legal and political arrangements have beenmade over the last few decades that provided quicksolutions to the worsening of conditions for indigenouspeoples. According to Coates [2], the fundamental chal-lenge now facing governments and non-indigenouspeoples is whether they are committed to the sustain-ability of indigenous cultures and societies. The NewZealand Government still has before it the challenge ofconceptualising the Maori world view and implementingits concepts into government policies and institutions.&Without such a conceptualisation and without an openagreement on the goal, it is di$cult to imagine indigen-ous organisations and governments creating lasting solu-tions' [2, p. 88]. The process of addressing all issuessurrounding Maori customary rights will require Pakehaand government institutions to see through di!erentlenses and to reassess their assumptions about institu-tions and frameworks to a much greater extent than wasrequired of them when addressing Maori commercial"shing rights, which "t conveniently within the newlyformed government-supported ITQ system.

If, in the near future, New Zealand's non-indigenouspeople do not con"rm their commitment to the survivalof Maori culture and society, then Maori's populationgrowth rate and their enhanced political and economicstrength will, in time, move society's response in theirfavour. If non-indigenous people's a$rmative responsecomes sooner than later, there is the prospect of movingcloser to Coates' advice to:

f focus on understanding New Zealand's pattern ofracial interaction;

f commit to support for Maori language and culture;f agree on a collective development strategy that match-

es Maori aspirations with government programmesand private sector activities; and

f create living treaties, not once-and-for-all-time agree-ments that provide little #exibility for the future.

There will then remain the prospect that the disparatecultures and traditions in Aotearoa New Zealand willbecome he iwi kotahi tatau (one people) as many Maori"rst hoped when they signed the Treaty of 1840.

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Documents

New Zealand's indigenous people and their claims to fisheries resources